Matthews v. Shawnee County Com'rs

• Decision Date: 04 February 1886
• Citation: 9 P. 765,34 Kan. 606
• Parties: M. E. MATTHEWS v. THE BOARD OF COMMISSIONERS OF SHAWNEE COUNTY
• Court: Kansas Supreme Court

9 P. 765

34 Kan. 606

M. E. MATTHEWS v. THE BOARD OF COMMISSIONERS OF SHAWNEE COUNTY

Supreme Court of Kansas

February 4, 1886

Application for a Writ of Mandamus.

ACTION brought in this court November 17, 1885, by M. E. Matthews against The Board of Commissioners of Shawnee County, and the county clerk thereof, to obtain a peremptory writ of mandamus to compel the defendant board to canvass certain votes. The opinion, filed February 5, 1886, contains a sufficient statement of the case.

Judgment refused.

M. E Matthews, plaintiff, for himself.

Charles Curtis, county attorney, and L. J. & L. S. Webb, for defendants.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

On March 7, 1885, the legislature of the state of Kansas passed an act creating the superior court of Shawnee county, (Laws of 1885, ch. 140,) which act took effect on March 13, 1885, and on March 24, 1885, the governor appointed Hon. W. C. Webb as judge of such court. On the next day Webb duly qualified and took possession of the office, and is still holding the office and exercising all its powers and functions. On November 3, 1885, which was the day of the general election for that year, a number of votes were cast in Shawnee county for the plaintiff, M. E. Matthews, for that office. The county commissioners refused to canvass the returns of these votes, and the plaintiff commenced this action against them to obtain a peremptory writ of mandamus from this court to compel them to canvass such returns. Upon the facts of this case as presented by the pleadings, the only question presented is, whether a valid election was held, or not, on November 3, 1885, for the office of judge of the superior court of Shawnee county.

The constitution provides, among other things, as follows:

ARTICLE 2, SECTION 19: " . . . It [the legislature] shall have the power to provide for the election or appointment of all officers, and the filling of all vacancies not otherwise provided for in this constitution."

ARTICLE 3, SECTION 1: "The judicial power of this state shall be vested in a supreme court, district courts, probate courts, justices of the peace, and such other courts, inferior to the supreme court, as may be provided by law; and all courts of record shall have a seal, to be used in the authentication of all process."

"SECTION 11. All the judicial officers provided for by this article shall be elected at the first election under this constitution, and shall reside in their respective townships, counties or districts during their respective terms of office. In case of vacancy in any judicial office, it shall be filled, by appointment of the governor, until the next regular election that shall occur more than thirty days after such vacancy shall have happened."

ARTICLE 15, SECTION 1: "All officers whose election or appointment is not otherwise provided for, shall be chosen or appointed as may be prescribed by law.

"SECTION 2. The tenure of any office not herein provided for may be declared by law; when not so declared, such office shall be held during the pleasure of the authority making the appointment; but the legislature shall not create any office the tenure of which shall be longer than four years."

The aforesaid statute of March 7, 1885, provides, among other things, as follows:

"SECTION 9. The governor shall appoint and commission a judge for the court hereby created, whose term of office shall commence on the date of his commission, and who shall hold his office until the first Monday of April, 1887.

"SECTION 21. Unless otherwise provided by law, said superior court shall cease to exist on the first Monday of April, 1887, on which date all actions, proceedings, orders, decrees and judgments then pending in said court, and all records, pleadings, processes and other matters belonging or pertaining thereto, shall be transferred to the district court of Shawnee county. . . . "

Whether any election for the office of judge of the superior court of Shawnee county was in fact held on November 3, 1885, may at least be questioned. There were over 6,300 votes returned as cast for other officers at that election, and yet only 254 votes were returned as having been cast for the office of judge of the superior court of said county; and all these were returned as having been cast for the plaintiff. The plaintiff, however, alleges in his application for the writ of mandamus that "he received at said election more than 700 votes for said office," and that he received all the votes that were cast for that office. It also appears that although there were four political parties at that time in Shawnee county--the republican, the democratic, the prohibition and the workingmen's party--and that all nominated candidates for the various offices to be filled at that election, except the office of judge of the superior court, yet that no party nominated a candidate for that office. Neither was there any notice given by any officer that an election would be held at that time for judge of the superior court of Shawnee county. Indeed, there was no election in fact held for that office, unless the law imperatively demanded that there should be such an election held at that time. But assuming for the purposes of this case that there was such an election held in fact, then was there any such election held in law? This question must be answered in the negative. Both parties assume that the act creating the superior court of Shawnee county is a valid law and that the court itself is a valid court, and therefore we shall also assume that the act is a valid act and that the court is a valid court, without discussing, considering or deciding the question of the validity or invalidity of the act or the court at all. We then have the naked question: Was the election valid? There is no provision in any statute or in the constitution authorizing the holding of any such election. The court itself was created merely for temporary purposes; and it will cease to exist and the office itself will expire on the first Monday of April, 1887; hence there could be no very great necessity for any such election. (See §§ 9 and 21 of the aforesaid act.) Under the constitution, the legislature has the power to create new courts, inferior to the supreme court, but what their jurisdiction or the tenure of office of the judges shall be, or how the judges shall be selected or chosen, is not prescribed by the constitution. The legislature selected the judge of the criminal court of Leavenworth county by simply enacting that the judge of the probate court should be the judge of the criminal court. (Comp. Laws of 1862, ch. 35, § 2.) And a court for the trial of contested county elections is created as follows:

"SEC. 87. A court for the trial of contested county elections shall be thus constituted: The probate judge shall be the presiding officer, and shall select two disinterested persons who shall be associated with him." (Comp. Laws of 1879, ch. 36, § 87.)

In the case of Anthony v. Halderman, 7 Kan. 50, 68, this court seems almost to have recognized the power of the legislature to give authority to the mayor and council of a city to create a city contest court. Also, the board of county commissioners is sometimes recognized as at least a quasi judicial tribunal. Indeed, courts may be created by statute in a great variety of ways, and courts so created are not courts provided for by the constitution, but are simply "such other courts, inferior to the supreme court, as may be provided by law." (Const., art. 3, § 1.) Only such courts as are specifically mentioned in the constitution are courts provided for by the constitution. We...